United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 31, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-41176
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL J. PETERS;
JEFFREY L. JACKSON,
Defendants-Appellants.
Appeals from the United States District Court
For the Eastern District of Texas
Before KING, Chief Judge, HIGGINBOTHAM and BARKSDALE, Circuit
Judges.
HIGGINBOTHAM, Circuit Judge:
Michael Peters and Jeffrey Jackson appeal their convictions on
three counts of knowingly operating a defective and damaged
wastewater tank in violation of the Clean Air Act,1 one count of
making a false writing as to material matters within the
jurisdiction of the Environmental Protection Agency,2 and one count
1
42 U.S.C. § 7413(c)(1) (1995).
2
18 U.S.C. § 1001 (2000).
of conspiracy to make the false writing.3 They argue that the
district court reversibly erred by (1) making coercive statements
and giving supplemental instructions to the jury foreperson during
an ex parte meeting; (2) allowing the wastewater tank conviction to
stand even though the government provided no evidence that they do
not qualify under an exception to the regulations; and (3) denying
their rights to speedy sentencing and appeal. Although we find no
error in the judge’s application of the wastewater tank regulations
to the defendants or the speed with which sentencing occurred, we
conclude that the judge’s ex parte communications with the jury
foreperson were reversible error. We reverse the convictions and
remand the case to the district court for a new trial.
I
Huntsman Petrochemical Corporation owns and operates an
aromatics and olefins production plant in Port Arthur, Texas. The
Port Arthur plant used benzene to produce ethylene, propylene, and
cyclohexalene. From 1994 to 1996, Appellant Peters was the
environmental manager for Huntsman’s Jefferson County Operations
(“JCO”) in southeast Texas. JCO consisted of four facilities,
including the Port Arthur plant, for which Peters oversaw
environmental policy and programs. The managers of each of the
four plants managed its daily operations. Jackson served as a
plant manager from early 1995 through mid-1997.
3
18 U.S.C. § 371 (2000).
2
The indictment alleged federal statutory violations involving
two of the Port Arthur plant’s components. First, the plant used
a tower to cool water used to cool processes in the Light Olefins
Unit. Water pumps through the processes, takes the heat and then
circulates through the cooling tower. After being notified by the
Texas Natural Resource Conservation Commission (“Commission”) that
the tower was a potential source for significant airborne benzene
emissions, Huntsman discovered that benzene was leaking into the
cooling system on a continuous basis. Peters drafted a letter to
the Commission that characterized the benzene leak as a “major
upset” in normal operations, which would exempt the plant from
sanctions under state law. A few weeks later, Peters drafted, and
Jackson signed, a Notice of Continuous Release for the benzene
releases from the cooling tower that was sent to the EPA and state
officials. A continuous release is one that is routine,
anticipated, and incidental to normal operations.4 The government
argued at trial that the notice to the EPA that characterized the
leak as continuous contradicts Peters’ earlier letter to the
Commission, which characterized the leak as a “major upset.”
Further, the government argued that Peters’ letter knowingly used
benzene emission samples from a different location that had lower
level emissions to give a false representation of emissions.
4
40 C.F.R. § 302.8(b) (2003).
3
The second alleged violation involved a wastewater tank used
to store wastewater prior to treatment. Tank 33756 (“Tank 56") was
used as a backup tank to hold benzene-contaminated wastewater.
Tank 56 operated by way of an external floating roof, but when the
level of wastewater in the tank dropped below a certain level, the
floating roof came to rest on its legs instead of the wastewater.
Lightning struck the tank in November 1995, causing a fire that
damaged the tank’s seal. After the fire, Jackson stated that he
would continue to use the tank. Huntsman repaired the tank in
April 1996. Jackson, Peters, and other Huntsman employees met with
state officials to discuss elevated benzene levels in the area of
the Port Arthur plant in July 1996. Although Peters and Jackson
prepared a chronology before the meeting that showed Tank 56's
wastewater level as below the level at which the roof would float
on the wastewater, this information was not part of the chronology
that Huntsman presented to the state officials.
A federal grand jury indicted Peters and Jackson. The
indictment alleged that they attempted to prevent the United States
from discovering the unauthorized release of volatile organic
compounds. It alleged further that Peters and Jackson violated the
Clean Air Act by operating Tank 56 in violation of EPA standards.
The case was tried to a jury.
The heart of this appeal focuses on an ex parte meeting
between the judge and the jury foreperson that occurred during the
jury’s three days of deliberations. The jury foreperson sent the
4
judge a note stating, “I’m not going to take insults and I ask to
be relieved.” In response, the judge informed the attorneys that
he wanted to meet privately with the foreperson. The judge told
the attorneys that the meeting would be limited to what was
bothering the foreperson. The attorneys did not object to the
meeting.
During the ex parte meeting, the judge and juror discussed
what was bothering the foreperson, but the discussion continued
into other areas. The foreperson told the judge that the jury was
eleven to one on one count, and “the pressure that was involved on
the one person to agree was tremendous.” The juror asked the judge
what effect the jury’s inability to agree on one count would have
on the overall verdict. The judge, in addition to answering his
question, told the juror, “It is my hope that there would be -
everybody hopes the jury will be able to conclude the verdict on
all counts.” He went on to tell the juror to “reach a unanimous
verdict on as many counts as you can without doing violence to
anyone’s conscience and so on.” The foreperson told the judge
three times that he was concerned with causing a mistrial, and the
judge assured him that the meeting would not do so. The judge went
on to tell the foreperson that he would not “declare a mistrial
until and unless I [know that], after necessary instructions and so
on, it’s impossible for the jury to proceed and obtain a unanimous
verdict on the issues that are before you.” The judge also told
the foreperson: “I anticipated that this jury would be out at
5
least two days, probably longer, I mean, yesterday and then today
and tomorrow.” Finally, the conversation led to inadvertent
supplemental instructions. The foreperson asked, “In order to have
one . . . overt act to be found guilty of, there may be several
parts, and all the parts have to be combined in order to make the
one true?” The judge answered, “Yeah,” and the foreperson
responded, “Okay.” Later in the ex parte meeting, when discussing
documents involved in the case, the judge instructed the juror “to
also remember the testimony about the document.”
A court reporter recorded the ex parte meeting, but the judge
sealed the transcript until after the trial. The judge told the
attorneys that the jury foreperson vented his frustrations. The
transcript was unsealed after the trial. It showed (1) the jury’s
deadlock on one count; (2) the judge’s instruction that “everyone
hopes the jury will be able to conclude the verdict on all counts”;
(3) the foreperson’s questions about the effect of the jury’s
answers on the entire verdict, the possibility of a mistrial
because of the meeting, or the meaning of an overt act; and (4) the
judge’s instructions in response to the foreperson’s questions.
The jury found both defendants guilty the day after the
meeting. Defendants moved for a new trial based, among other
things, on the ex parte meeting. The motions were denied.
II
A
6
Defendants argue that the judge’s meeting with the foreperson
was reversible error under United States v. Gypsum Co.5 and United
States v. Cowan.6 They argue that the judge’s comments and
instructions rise to the level of impermissible coercion, and
violate their right to be present, to object, and to clarify
supplemental instructions when given.
The Supreme Court and this court have warned of the dangers
inherent in any ex parte meeting between judge and juror, despite
good intentions:
Any ex parte meeting or communication between the judge
and the foreman of a deliberating jury is pregnant with
possibilities for error. . . . [E]ven an experienced
trial judge cannot be certain to avoid all of the
pitfalls inherent in such an enterprise.7
The Court in Gypsum gave three reasons for the great possibility of
error. First, a judge cannot predict or control the direction a
conversation may take, and “[u]nexpected questions or comments can
generate unintended and misleading impressions of the judge’s
subjective personal views which have no place in his instruction to
the jury – all the more so when counsel are not present to
challenge the statements.”8 Second, there is a risk that the one
juror will return to the jury and provide “innocent misstatements
5
438 U.S. 422 (1978).
6
819 F.2d 89 (5th Cir. 1987).
7
Cowan, 819 F.2d at 91 (quoting Gypsum, 438 U.S. at 460).
8
Gypsum, 438 U.S. at 460.
7
of the law and misinterpretations despite the good faith of the
participants.”9 Finally, “the absence of counsel from the meeting
and the unavailability of a transcript or full report of the
meeting aggravate the problems of having one juror serve as a
conduit for communicating instructions to the whole panel.”10 The
supplemental instruction regarding the jury’s obligation to return
a verdict, coupled with the judge’s disallowance of any possible
remedy for the situation by excluding the attorneys, led the court
to hold that “the Court of Appeals would have been justified in
reversing the convictions solely because of the risk that the
foreman believed the court was insisting on a dispositive
verdict.”11
In Gypsum, the judge informed counsel that he wished to meet
with a juror ex parte to discuss solely the jury’s health after a
long trial. Counsel made no objection and reluctantly agreed. The
conversation drifted away from its intended topic, moving instead
to whether the judge insisted on a verdict. The Court found the
following colloquy to be reversible error:
THE COURT. I would like to ask the jurors to continue
their deliberations and I will take into consideration
what you have told me. That is all I can say.
9
Id. at 461.
10
Id.
11
Id. at 462.
8
MR. RUSSELL. I appreciate it. It is a situation I don’t
know how to help you get what you’re after.
THE COURT. Oh, I am not after anything.
MR. RUSSELL. You are after a verdict one way or the
other.
THE COURT. Which way it goes doesn’t make any difference
to me.12
Most of the conversation between the judge and juror concerned the
health of the jury after a five-month jury trial, and the state of
the jury’s deadlock.13 Nonetheless, the court found the above
colloquy created such a risk of improper influence by the judge
that it constituted reversible error.14 Neither the judge’s comment
that he was not after anything, nor the fact that his final
statement could be interpreted by some as not insisting on a
verdict, could save the jury’s verdict. The risk alone that the
judge was insisting on a verdict required reversal.15
This circuit followed Gypsum’s instruction and reasoning in
Cowan. In Cowan the jury was deadlocked on the question of
conspiracy, and the judge told counsel that he wanted to question
each juror ex parte about the prospect of reaching a verdict.16
12
Id. at 432.
13
Id.
14
Id. at 462.
15
Id.
16
Cowan, 819 F.2d at 90-91.
9
Counsel did not object.17 Inadvertently, the ex parte
communications drifted into supplemental instructions concerning
the jury’s obligation to reach a verdict.18 A jury member told the
judge that the jury could not agree on the definition of
conspiracy, and the judge responded, “I don’t see how there can be
any real difference of opinion. They [the jury instructions] are
[in] very plain English, which is what they try to do and put it in
layman’s language and not some technical language that a jury
person couldn’t understand.”19 The judge also told another juror,
“well, I really hate to keep you here and I was supposed to be home
tonight, but it is just one of those things.”
Relying on Gypsum, the Cowan court held that these comments
impermissibly influenced the jury and required reversal. First,
the comment about the instructions could have made the jury think
that the judge viewed them as less intelligent than other juries.20
As a result, the juror “could have reasonably inferred that the
judge was irritated that the jury was unable to return a verdict
for such a frivolous reason.”21 Second, the comment about hating
to keep the jury into the evening could be perceived as pressure to
17
Id. at 91.
18
Id. at 91-93.
19
Id. at 91 (alteration in original).
20
Id. 91-92.
21
Id. at 92.
10
return a verdict.22 Third, the situation was aggravated by the fact
that the attorneys were excluded from the meetings and were not
allowed to correct any mistaken impression given.23 The court held
that this exclusion constituted a denial of the defendant’s right
to object to supplemental instructions.24
Cowan found the error was not harmless because it did not know
whether the verdict was a result of the court’s improper influence.
While the jury convicted the defendant on another count that was
not discussed during the ex parte meeting, the second count could
not save the verdict because “the jury’s verdict on both counts was
not delivered until after the ex parte communications were
completed.”25
It is noteworthy that the Gypsum and Cowan courts reversed
despite the lack of an objection by counsel. The courts forgave
the lack of an objection because the ex parte meetings moved beyond
the scope of consent given by counsel. In Gypsum, counsel
acquiesced to an ex parte meeting limited to receiving “a report on
the state of affairs in the jury room and the prospects for a
verdict.”26 Counsel did not agree to an incomplete report of the
22
Id. at 92-93.
23
Id. at 93.
24
Id.
25
Id. at 94.
26
Gypsum, 438 U.S. at 461.
11
meeting, the judge giving supplemental instructions, or the judge’s
coercion of the jury into reaching a verdict.27 The same approach
was taken by this circuit in Cowan: “As in Gypsum, we overlook the
defendant’s failure to object because he was led to believe that
the district judge sought only to evaluate the prospects for
reaching a verdict.”28
B
Gypsum and Cowan lead us to find reversible error. We
recognize that this able judge was not bearing down on the
foreperson and was not attempting to force a verdict. But the law
controlling this case affords little tolerance for any ex parte
meeting between judge and juror during deliberations, and
statements that seem innocuous at first glance may - in the law’s
eye - be improperly influential. Here, the judge’s statements
regarding his and everybody’s hope for a verdict, his desire for
unanimity, his expectations as to how long the jury should take to
reach a verdict, and the instructions on the law make the meeting
at least as impermissible as those in Gypsum and Cowan.
First, as in Gypsum and Cowan, the judge’s inadvertent
comments regarding his hope for a verdict may have generated the
“unintended and misleading impressions of the judge’s subjective
27
Id.
28
Cowan, 819 F.2d at 93.
12
personal views.”29 While discussing the foreperson’s concern about
not reaching a verdict, the judge stated that it was his “hope that
there would be - everybody hopes the jury will be able to conclude
the verdict on all counts.” He instructed the foreperson to “reach
a unanimous verdict on as many counts as you can.” He told the
foreperson how long he expected the jury to take in reaching a
verdict. In response to the foreperson’s concern that a mistrial
may result, the judge assured him that he would only declare a
mistrial after he was sure the jury could not reach a unanimous
verdict. These statements are not overly or intentionally coercive.
However, they are at least as objectionable as the judge’s
statement in Gypsum. There, the judge said that which way the
verdict came out did not matter to him, implying the obligation to
return a verdict “one way or the other.” The judge qualified his
comments by stating that he was not after anything, but the Court
found the meeting to constitute reversible error nonetheless. The
statements here are more explicit and extensive on the judge’s
personal desire for a verdict. The judge’s comments may have
impressed on the jury an obligation to return a verdict, and
counsel could not remedy this impression because of their absence.
We are left with the possibility of this impression and the
inability to correct it, as in Gypsum and Cowan.
29
Gypsum, 438 U.S. at 460.
13
Second, the judge’s instructions on the definition of an overt
act, the effect of the jury’s answer to one count on the overall
verdict, and the possibility of a mistrial created the risk that
the foreperson would return to the jury and provide “innocent
misstatements of the law.” Of course, no one knows what was said
among the jurors after the ex parte meeting, but we are left with
a high risk of the foreperson’s misstatements.
Finally, counsel was absent from the meeting, and the
transcript was sealed until after the jury delivered its verdict.
As noted in Gypsum and Cowan, these facts aggravate the already
high risk of the jury’s impression that it must return a verdict
and the jury’s misinterpretation of the judge’s comments. Counsel
was unaware of the coercive statements and the supplemental
instructions, and therefore was denied the opportunity to remedy
the situation. Together these three considerations - the risk of
coercion, the incidental supplemental instruction and the absence
of counsel - constitute reversible error.
C
We are keenly aware that counsel might sandbag a trial judge
by standing down while a judge enters a situation known by all to
be “pregnant with possibilities for error.” Chief Justice
Rehnquist’s dissent from Gypsum’s approach to the ex parte meeting
because the meeting was “consented to by all parties to the case”
14
has great force.30 Similarly, the Third Circuit noted the danger
of sandbagging in a case where counsel repeatedly encouraged ex
parte meetings.31 The Chief Justice’s view, however, was the
dissent, and counsel here did not encourage ex parte meetings.
Accordingly, our standard is harmless error.
This case involved a complicated factual history and a
technical area of the law. The jury had difficulty coming to a
unanimous verdict. After reviewing the record, we, like the Cowan
court, cannot say that the jury was not coerced or intimidated into
reaching a unanimous verdict. We also follow Cowan in holding that
the jury’s possible other verdicts - not discussed in the ex parte
meeting - do not provide a basis for affirmance.32 The verdict was
delivered after the ex parte meeting, and any possibility of a
conviction or acquittal on other grounds before that meeting is
mere speculation.
30
Gypsum, 438 U.S. at 474 (Rehnquist, C.J., concurring in part
and dissenting in part).
31
United States v. Aimone, 715 F.2d 822, 829 (3rd Cir. 1983)
(“[W]hen defense lawyers, as a matter of trial strategy, urge the
judge to conduct off-the-record interviews with a juror in a
situation like this, we hold counsel to their obligations to the
court. They may not promote action by a trial judge and then
assign that compliance as error. ‘Sandbagging’ will not be
countenanced by this court.”).
32
Cowan, 819 F.2d at 94 (“Although the ex parte communications
ostensibly focused only on the conspiracy charge, the jury’s
verdict on both counts was not delivered until after the ex parte
communications were completed. The government is therefore only
speculating that the jury unequivocally convicted Cowan on the
distribution count.”).
15
III
Defendants also urge that counts 3-5 of their indictment
addressing possible Clean Air Act violations fail as a matter of
law and require that we dismiss them with prejudice. The argument
is that the charged regulations do not apply because defendants
chose an alternative means of compliance, and that the government
presented no evidence that they did not comply with the
alternative, so dismissal with prejudice is required. We disagree.
Defendants were charged with failing to comply with various
wastewater tank standards set forth in 40 C.F.R. §§ 60.112b and
60.351. Another regulation, 40 C.F.R. § 61.342(e), provides an
alternative means of compliance with benzene waste operations.
Although not raised or argued at trial, the argument is that
defendants selected this alternative, and the government produced
no evidence to show that they did not comply with it.
This alleged error was not raised at trial and we review for
plain error. We are persuaded that the alternative on which
defendants rely is properly construed as an affirmative defense
that the government does not have to plead and prove as an
essential element of the offense. It is a “well-established rule
of criminal statutory construction that an exception set forth in
a distinct clause or provision should be construed as an
affirmative defense and not as an essential element of the crime.”33
33
United States v. Santos-Riviera, 183 F.3d 367, 370-71 (5th
Cir. 1999) (citing McKelvey v. United States, 260 U.S. 353, 357
16
Here, a provision distinct from the wastewater tank requirements
provides an alternative means of compliance. The government need
not negate this exception when charging one with violating the tank
standards; instead, it is the defendants’ burden to prove the
exception’s applicability as an affirmative defense. There was no
error, much less plain error; we therefore remand counts 3-5 of the
indictment along with the other counts.
IV
Defendants next contend that delay in sentencing denied their
Sixth Amendment right to speedy sentencing and their due process
right to a reasonably speedy appeal. A court considers four
factors in determining whether delay in sentencing violated a
defendant’s rights: (1) the length of the delay; (2) the reason
for the delay; (3) the defendant’s assertion of his speedy trial
right; and (4) the resulting prejudice to the defendant, if any.34
Considering these factors in light of the record, we do not believe
the defendants’ rights were violated. The delay in sentencing was
attributable to the complexity of the issues presented, various
post-trial motions, and the resolution of issues regarding the
Presentence Report, which defendants fought strongly. These
circumstances show the delay to be reasonable, and no prejudice has
been shown that would justify a reversal with prejudice.
(1922)).
34
See Barker v. Wingo, 407 U.S. 514 (1972); see also United
States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996).
17
V
We REVERSE the defendants’ convictions and REMAND for a new
trial.
18